The executive Decree No. 4324 9-S will take effect on next October 15, 2021 making mandatory vaccination for the private sector employees.
This decree requires the COVID-19 vaccine to be mandatory for all public sector officials and those in the private sector whose employers so decide and incorporate it into their internal labor provisions. Since it indicates that “it will be the responsibility of the employer to take the corresponding measures in agreement with the legislation of the country and institutional regulations, in the case of workers who do not want to be vaccinated against COVID-19.”
Since health is a fundamental right of all people and the Constitutional Chamber has recognized the importance of vaccination to protect this right, employers may regulate how to implement its obligation for their current and future population. This is based on the benefit of reducing the autonomy of the person to protect the general interest of public health and life.
The exception contemplated by the decree is for those officials who should not be vaccinated due to a duly declared medical contraindication.
Motivation for mandatory nature:
- COVID-19 has the nature of a pandemic due to its easy transmission, for the possibility of not showing symptoms, the severity, and mortality it has caused in some especially vulnerable populations. In addition, there is a national limitation of providing sufficient specialized care.
- The vaccination of adults protects the infant population for whom the vaccine has not yet been approved.
- Safer workplaces open the economy without collapsing the hospital system.
- The spread of the virus interrupts labor in work centers and the continuity of customer service.
Changes to be considered by the employer in internal policies or regulations:
- Ensure that the mandatory nature of the complete vaccination scheme has the purpose of protecting the health and the life of all collaborators, their families, clients, suppliers, or similar people with whom they need to interact in order to comply with the objective of their labor contract. Therefore, the company will provide training and awareness to achieve complete vaccination of their entire workforce.
- Clearly notify and through the appropriate means to all employees of A) The inclusion in the guidelines or internal policies of the obligation to be vaccinated against COVID-19. B) The link to consult the new text of the guidelines, and C) The means authorized to present the original vaccination card or certification issued by the ministry of health of Costa Rica in order to demonstrate complete vaccination.
- Inform about A) The objectives pursued by the company when requesting the vaccination data of their employees. B) The people who will have access to that information, ensuring the confidentiality of the handling and filing of this one. C) The means accepted as trustworthy by the employer: Vaccination card from the ministry of health in good condition with the name and ID number of the collaborator, apostilled certification of those doses received outside Costa Rica, or certificate issued by the Ministry of Health of Costa Rica that accredits vaccination abroad and in the country. The people who have access to this information and the reasons that exempt them from its application must maintain the duty of confidentiality.
- Current and future employees will have a period of ten business days starting from the publication of the new internal guidelines to demonstrate compliance with the entire scheme (or number of doses) necessary according to the company that provides each vaccine or the date on which they have been cited for the second dose.
- That in the following 10 days from when the policy was received, they may request the permits (with or without salary as defined in the policy) necessary to have the first dose and the second dose scheduled. The company will grant a reasonable period for the workers to apply the first and second doses of the vaccine, according to its availability and due reasonableness to achieve the above.
- The brands of vaccines that are approved in Costa Rica and therefore by the employer are: Pfizer/BioNTech, AstraZeneca-Oxford, Moderna, and Johnson & Johnson.
- That any collaborator who offers the documentation of point 1 (prior) within the period determined in point 4 will be open to specific actions for the well-being of their colleagues, the continuity of the business and, the protection of the customers.
- That if any collaborator should not be vaccinated by medical indication, they may provide the original medical opinion of the respective CCSS establishment to the person in charge of the Department of Human Resources. This has to be within the same period of 10 working days from when the policy was received. The company will proceed as far as possible to modify the working conditions of the employee that cannot be vaccinated to minimize the risk of other people.
- Employees who do not comply with the obligation to demonstrate their vaccination within the determined period of time will be in breach of this internal regulation, causing them to be open to the consequences contemplated in the policies or internal guidelines, as established in the Labor Code.
- The company reserves the right to apply the corresponding legal sanctions, including dismissal without employer responsibility, to those employees who do not comply with the prevention measures against Covid-19 ordered by the health authorities. As well as to those people who unjustifiably refuse to be vaccinated, contrary to what is indicated in the company’s internal policies or guidelines.
- Prior to dismissal without labor liability, the company needs to issue a warning to the workers so that they can correct their behavior or, failing that, provide proof that justifies their refusal to be vaccinated. The lapse of time to comply with this warning should be established prudently, taking into account the availability of vaccination centers near the workplace or the person’s address.
- Clarify that in case reinforcement doses are required in the future, the above guidelines will also be applied.
- In the cases of workers covered by some special jurisdiction, the employer must, prior to dismissal, request authorization from the national labor inspection directorate.
Legal basis:
Articles 21 and 50 of the Constitution establish that the right to life and health of people is a fundamental right, as well as the well-being of the population. Which will become legal assets of public interest, due to the elements mentioned before the State has the inexorable obligation to ensure its protection.
Executive Decree no. 42227-MP-S of March 16, 2020 was declared a state of national emergency throughout the national territory due to the health alert caused by COVID-19.
Article 46 of the Civil Code, Act No. 63 of September 28, 1887, states that: “Any person may refuse to undergo medical or surgical examination or treatment, except for cases of obligatory vaccination or other measures relating to public health, labor safety and the cases provided for in article 98 of the Family Code. However, if a person refuses to submit to a medical examination, which is necessary to prove in court certain controversial facts, the judge may consider as proven the facts that were tried to be demonstrated by way of examination.”
Articles 282 and 285 of The Labour Code, Act No. 2 of August 27, 1943, respectively, stipulate that “Every employer is responsible for adopting, in the workplace, measures to guarantee the occupational health of workers. In accordance with the terms of this Code, its regulations, the occupational health regulations promulgated, and the recommendations made in this area by both the Occupational Health Council and the inspection authorities of the Ministry of Labour and Social Security, the Ministry of Health and the National Insurance Institute.” In addition to the above “Every worker shall comply, as far as is applicable, with the terms of this law, its regulations, the occupational health regulations promogulated, and the recommendations made by the competent authorities in this matter…”
National Vaccination Law, Law No. 8111 of July 18, 2001, establishes in paragraph 3 that vaccines against diseases are mandatory when it deems it necessary by the National Commission on Vaccination and Epidemiology, which is created in this Law, in coordination with the Ministry of Health and the Costa Rican Social Security Fund.
Constitutional Chamber, judgment No. 2000-11648 of 10:14 a.m. on December 22, 2000, held that “(…) this Chamber does not consider that the consultants are right, saying that by establishing the obligatory nature of vaccines it can be harmful to the right of autonomy of the will. Health as a means and as an end to the personal and social fulfillment of man constitutes a human and social right whose recognition is beyond dispute. It is one of the rights of man that emanates from his dignity as a human being.”
Executive Decree No. 43249-S.
Note: The purpose of the present publication is to provide general information on the updates for Labor regulations in Costa Rica and it is not intended to be legal advice as such. In case more specific information is required regarding these topics, please Cordero & Cordero Abogados at info@corderoabogados.com or visit our web page at www.corderoabogados.com
